Opinion
No. 2014BX035066.
11-10-2015
The PEOPLE of the State of New York, v. Joseph WILSON, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Sarande Dedushi, Assistant District Attorney, for the People. The Bronx Defenders by Melissa Lee, for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Sarande Dedushi, Assistant District Attorney, for the People.
The Bronx Defenders by Melissa Lee, for Defendant.
ARMANDO MONTANO, J.
Defendant is charged with Resisting Arrest (PL § 205.30), Obstructing Governmental Administration in the Second Degree (PL § 195.05), and Disorderly Conduct (PL § 240.20[6] ).
Defendant moves for an order pursuant to CPL §§ 170.30, 170.35, and 100.40, dismissing the superseding information as facially insufficient.
The factual allegations in the accusatory instrument sworn to by the deponent, PO Louis Fiote, read as follows:
Deponent states that [on or about July 1, 2014 at approximately 6:50 PM at Northeast Corner of Boston Road and East 168th Street, County of the Bronx, State of New York], deponent was responding to a call for assistance. Deponent further states that he observed defendant standing with approximately forty (40) other individuals in the vicinity of where other police officers were effectuating an arrest of separately apprehended TYASIA MATOS (Arrest No.B14646289). Deponent further states that he asked defendant to move away from that area numerous times and defendant refused to move. Deponent further states that defendant stated, in sum and substance: I'LL MOVE WHEN THE CROWD MOVES. Deponent further states that he asked the defendant to move away from the area again and defendant stated in sum and substance: I'LL KNOCK YOU THE FUCK OFF, all while defendant squared his body towards deponent, put his arms up with each of his hand closed in a fist and lunged towards deponent.
Deponent further that the defendant's aforementioned conduct prevented deponent from performing his official duties in assisting with the aforementioned arrest.
Deponent further states that upon attempting to arrest the defendant for the aforementioned conduct, defendant flailed his arms and kicked his legs, all in an attempt to avoid being handcuffed.
Defendant argues that the accusatory instrument must be dismissed because it fails to allege adequate facts of an evidentiary character which support all of the elements of the offenses charged. With respect to count one, PL § 195.05, defendant argues that since he simply refused to leave the vicinity of the unrelated arrest of separately apprehended Tyasia Matos, the complaint has failed to set forth sufficient facts to demonstrate that the officer was legally authorized to arrest him.
With respect to count two, PL § 205.30, defendant asserts that the accusatory instrument is deficient in two respects. First, defendant avers that the information is wholly devoid of any facts suggesting that he physically interfered or attempted to interfere with the officer's ability to assist in the arrest of separately apprehended Tyasia Matos. At most, defendant contends that the accusatory instrument only alleges that he was standing in a group of 40 other individuals somewhere in the vicinity of an unrelated individual's arrest. Second, defendant asserts that the accusatory instrument fails to assert sufficient facts to establish that the officer was engaged in official duties. Defendant points out that there is no indication that the deponent was a uniformed officer or otherwise identifiable as a public servant at the time he ordered him to move away from the area. Without any factual allegations detailing the official function of the officer which defendant allegedly impeded, defendant argues that the complaint fails to demonstrate a legally sufficient case.
The People assert that the superseding information is facially sufficient in that it provides detailed facts which support the charges and provides suitable notice to defendant to prepare a defense to the offenses charged. As to the charge of PL § 195.05, the People argue that there are ample facts alleging the charges of Disorderly Conduct and Obstructing Governmental Administration and a detailed description of defendant's resisting conduct, i.e., flailing his arms and kicking his legs in an attempt to avoid being handcuffed.
As to the charge of PL § 205.30, the People point out that the accusatory instrument alleges that Officer Fiote responded to a call for assistance, that defendant was standing with approximately 40 other individuals in the vicinity where other officers were effectuating the arrest of a separately apprehended individual. The accusatory instrument also alleges that in furtherance of his official duties of maintaining order and assisting the other officers on scene, Officer Fiote repeatedly ordered defendant to move away from the location. The People note that after Officer Fiote ordered defendant to leave a final time, defendant again refused to do so and instead threatened to strike the officer, squared his body towards the officer, and lunged at him. Based on the foregoing, the People argue defendant's motion should be denied since the accusatory instrument sufficiently demonstrates that defendant intentionally prevented or attempted to prevent a public servant from performing an authorized official function by means of intimidation, physical force or interference.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3] ; People v. Dumas, 68 N.Y.2d 729 [1986] ) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c] ). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b) ; Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70 .10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 N.Y.3d 249, 254, 938 N.Y.S.2d 500, 961 N.E.2d 1111 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15 ; People v. Mellish, 4 Misc.3d 1013(A) (Crim Ct, N.Y. County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 (App Term, 2d Dept.2005). As such, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).
Obstructing Governmental Administration in the Second Degree
"A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act ." PL § 195.05. A person acts intentionally with respect to a result or conduct "when his conscious objective is to cause such result or to engage in such conduct." PL § 15.05. "Because intent' cannot be the subject of a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary facts from which intent may be inferred." People v. Spiegel, 181 Misc.2d 48, 52, 693 N.Y.S.2d 393 (Crim Ct, N.Y. County 1999)quoting People v. Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 (App Term, 2d & 11th Jud Dists) lv denied 91 N.Y.2d 894 (1998). Intent can be inferred from the defendant's conduct and/or the surrounding circumstances. See, People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094 (1977) ; People v. Collins, 178 A.D.2d 789, 578 N.Y.S.2d 273 (3d Dept.1991) ; People v. Hawkins, 1 Misc.3d 905(A) (Crim Ct, N.Y. County 2003).
"The plain meaning of the statute and the accompanying Commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function." People v. Joseph, 156 Misc.2d 192, 193, 592 N.Y.S.2d 238 (Crim Ct, Kings County 1992). A facially sufficient information must set forth adequate factual allegations specifying an official activity. Id. at 196, 592 N.Y.S.2d 238.
This court finds that the element of an official function is sufficiently pled since the superseding information alleges that Officer Fiote arrived on the scene in response to a call to provide assistance to other officers in effectuating an arrest of a separately apprehended individual. However, this court finds that the superseding information fails to establish that defendant intentionally prevented a public servant from performing an official function. As correctly noted by defendant, there are no facts alleged to indicate that Officer Fiote was in uniform or that he ever identified himself as a police officer. The complaint alleges at best that defendant was repeatedly told by some individual to leave the area. Unless defendant knew that the deponent was a police officer, his refusals to move away from the area and his subsequent actions of lunging at the deponent do not evince an intent on defendant's part to interfere with a public servant's performance of their duties. Nor is there any representation that Officer Fiote was attempting to assist in the arrest of separately apprehended Tyasia Matos and that defendant's actions interfered with the arrest. Mere presence at the scene of an arrest does not make one guilty of interfering with that arrest.
Resisting Arrest
"A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." PL § 205.30. "A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause." People v. Jensen, 86 N.Y.2d 248, 253, 630 N.Y.S.2d 989, 654 N.E.2d 1237 (1995).
This court finds that the accusatory instrument fails to establish either of the underlying charges of Obstructing Governmental Administration or Disorderly Conduct. "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." PL § 240.20(6). In order to establish a prima facie case of PL § 240.20(6), the People must demonstrate that defendant intentionally and/or recklessly congregated with others in a public place and refused to comply with a lawful order by the police to disperse.
In People v. Cohen, 6 Misc.3d 1019(A) (Crim Ct, N.Y. County 2005), the defendant was charged with three counts of Disorderly Conduct (PL §§ 240.20[5] and [6] ) and one count of Parading without a permit (AC §§ 10–110). With respect to the charge of PL § 240.20(6), the factual allegations in the complaint read in pertinent part as follows: Deponent further states that defendant was told to move out of the street and defendant refused to move. In dismissing this charge, the court noted that "[i]nherent in the term lawful order is that the order was given by a police officer or an authorized peace officer." Id. at *2. The court held that the complaint failed to establish the element of a lawful order as there were no facts alleged indicating who gave the order or that the order came from a police or peace officer.
Here, the superseding information alleges that the deponent asked defendant numerous times to move away from the area. As in Cohen, supra, there is no indication that the order to disperse came from a police officer. Absent such allegations, the superseding information fails to establish the element of a lawful order, thereby rendering the accusatory instrument facially insufficient as to the charge of Disorderly Conduct.
Since the accusatory instrument fails to allege sufficient facts to support either of the underlying charges of Obstructing Governmental Administration or Disorderly Conduct, those facts are insufficient to establish an authorized basis for defendant's arrest. As such, the accusatory instrument fails to establish a prima facie case of PL § 205.30.
Accordingly, defendant's motion to dismiss the superseding information as facially insufficient is granted. This court directs sealing to be stayed for thirty (30) days from the receipt of this decision and order. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30.
This constitutes the decision and order of this court.